A bill that would prevent complaints against police officers from being disclosed under the Freedom of Information Act (FOIA) before they have been investigated and adjudicated passed the Senate unanimously on May 7.
The FOIA exemption in SB 1436 is part of a broader bill responding to allegations that Connecticut State Police officers were writing fake tickets, with some groups worrying it could obscure demographic data on traffic stops.”
The bill would make it a crime to intentionally make a false statement in either a law enforcement or Department of Corrections (DOC) record. The bill includes false written statements or false information in its definition of a false statement, as well as statements intended to mislead police performing their official function. The bill would make such statements a class D felony, punishable by a fine of up to $5,000, up to five years in prison, or both.
In addition, SB 1436 would also allow the Police Officer Standards and Training Council (POST) to cancel an officer’s certification if they are found to have made a false statement in a law enforcement record or a DOC record. It further expands the types of violations chief police officers are required to report to POST and requires chief police officers to notify the state’s attorney’s office if they suspect an officer has engaged in criminal conduct.
But while much of the bill ostensibly focuses on greater police accountability, FOI advocates have sounded the alarm that its exemption prohibiting the disclosure of complaints against police until they have been ‘adjudicated’ accomplishes the opposite.
Freedom of Information Commission (FOIC) executive director Colleen Murphy said in written testimony that the exemption would “open the door for law enforcement agencies to indefinitely withhold all records pertaining to complaints of police misconduct.”
Murphy also worried that if “an officer retires or resigns before a complaint is “investigated and adjudicated by a proper legal authority,” the public may never know what circumstances led to that decision.” She also noted that while the bill prohibits complaints being released before they are “adjudicated,” it does not specify what qualifies as an adjudication or whether the proposed exemption would apply to complaints involving criminal conduct, which must be disclosed under other state statutes.
Matthew Reed, a former police chief and FOIC attorney, called the proposed exemption “a dangerous erosion of the police transparency and accountability measures enacted in recent years by the General Assembly” in written testimony. Reed also echoed Murphy’s concerns that the bill does not specify what counts as a formal complaint. He also referenced a state statute that prohibits municipalities from hiring police officers who resigned or retired while under an investigation.
“[T]his proposed exemption could allow a department to withhold records of an ongoing complaint or investigation, making it easier for officers facing serious allegations to move between departments undetected.” Reed wrote.
Several pieces of testimony also referenced Hartford’s recent announcement it had hired Philadelphia police captain Tyrell McCoy to serve as a police chief, only for the city to pull his name from consideration a week later. Subsequent media coverage revealed that there were several sexual harassment allegations against McCoy under investigation, as well as a number of civilian complaints. If SB 1436 passes as written, that information would likely not have been disclosed.
If passed, the FOIA exemption would also likely impact a law aimed at increasing police accountability that went into effect in 2020. That law clarified that in any cases where there was conflict between agreements or arbitration awards relating to collective bargaining agreements and disclosure of records under FOIA, FOIA should always prevail.
The law also prohibited collective bargaining agreements or arbitration awards from prohibiting the disclosure of disciplinary actions.
Several law enforcement groups that testified opposed the bill on the grounds that it targets police officers by making them, but not other types of public employees, criminally accountable for falsifying records, did express support for the FOIA exemption.
The Police Officers Association of Connecticut stated the exemption “establishes a necessary balance between transparency and due process” and protects police from “unwarranted character harm before the validity of allegations is determined.”
AFSCME 4 opposed the portions of the bill that would criminalize false statements in law enforcement records but said the FOIA exemption would “shield officers from having uncorroborated complaints made public.”
Other testimony in support of the bill from law enforcement professionals, including Department of Emergency Services and Public Protection commissioner Ronnell Higgins, did not reference the FOIA carveout for unadjudicated complaints.
The bill has garnered little criticism from legislators, passing out of the Judiciary Committee on a voice vote and receiving unanimous bipartisan support from all members of the Senate. Brief introductory remarks prior to the bill’s passage in the Senate did not mention the FOI carveout.
SB 1436 will now head to the House of Representatives for potential final action.
Transparency Note: Katherine Revello is a member of the Connecticut Council on Freedom of Information’s board of directors. CCFOI submitted testimony on this bill.
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